U.S. v. Stone

• Decision Date: 22 April 1998
• Docket Number: No. 96-3135,96-3135
• Citation: 139 F.3d 822
• Parties: 11 Fla. L. Weekly Fed. C 1262 UNITED STATES of America, Plaintiff-Appellee, v. Kelly Knight STONE, Kelly Lee Stricklin, Michael Lee Stricklin, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 822

139 F.3d 822

11 Fla. L. Weekly Fed. C 1262

UNITED STATES of America, Plaintiff-Appellee, v. Kelly Knight STONE, Kelly Lee Stricklin, Michael Lee

Stricklin, Defendants-Appellants.

No. 96-3135.

United States Court of Appeals, Eleventh Circuit.

April 22, 1998.

J. LaDon Dewrell, Fort Walton Beach, FL, Timothy W. Shaw, Penrell & Shaw, Ft. Walton Beach, FL, for Kelly Lee Stricklin.

Christopher L. Rabby, Pensacola, FL, for Michael Lee Stricklin.

Marcia G. Shein, Richard Biggs, Atlanta, GA, for Kelly Knight Stone.

P. Michael Patterson, U.S. Atty., Tallahassee, FL, Nancy Hess and Robert G. Davies, Assts. U.S. Attys., Pensacola, FL, for Plaintiff-Appellee.

Appeals from the United States District Court for the Northern District of Florida.

Before BLACK and BARKETT, Circuit Judges, and PROPST ^*, Senior District Judge.

PER CURIAM:

BACKGROUND

All three defendants were charged in Count I of an eleven-count indictment with conspiracy to possess with intent to distribute a controlled substance, cocaine base, commonly known as crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) & 846. ¹ Prior to the conclusion of trial, defendant Kelly Knight Stone ("Stone") joined a co-defendant's request that a lesser-included offense instruction be given the jury with respect to the crime of conspiracy to possess a controlled substance (cocaine base) with intent to distribute. The requested instruction was for conspiracy to possess a controlled substance (cocaine base) under 21 U.S.C. §§ 844(a) & 846. The trial court decided, with some apparent reservation, to give the lesser-included offense instruction. ² Stone, though found not guilty of the §§ 841(a)(1) & 846 conspiracy charge, was found guilty of conspiracy to possess a controlled substance (cocaine base) under §§ 844(a) & 846. At sentencing, the district court found from a preponderance of the evidence that Stone conspired to possess more than five grams of cocaine base, metamorphosing what might otherwise have been a misdemeanor violation under §§ 844(a) & 846 into a felony conviction under that same statute, for which a sentence of 188 months was imposed. ³

The defendant complains that his conviction under §§ 844(a) & 846 was unconstitutional, because essential elements of the §§ 844(a) & 846 offense of which he was convicted and sentenced, that he conspired to possess (1) in excess of five grams of (2) cocaine base, were not essential elements of the §§ 841(a) & 846 crime stated in the indictment and that the offense of which he was convicted was therefore not a lesser-included offense of the §§ 841(a) & 846 conspiracy charged in the indictment. In addition, contends Stone, by not submitting to the jury the issue of the amount of cocaine base he allegedly possessed, the trial judge improperly instructed the jury on the defined crime of conspiracy to possess in excess of five grams of cocaine base. Finally, Stone argues that, in the event that he was properly convicted of conspiracy to possess a controlled substance under §§ 844(a) & 846, the trial judge erroneously sentenced him as a felon rather than as a misdemeanor offender. The Government argues that Stone cannot be heard to complain at being undone by his own request. The defendant, the Government states, invited the district court to commit error and now must accept its rulings. Further, asserts the Government, that the controlled substance Stone possessed was in an amount over five grams and that it was cocaine base are not essential elements of the offense, but are mere sentencing factors.

Stone raises two more issues in his appeal. First, Stone claims that the trial judge failed to properly instruct the jury as to the mens rea requirement of 18 U.S.C. § 922(a)(1)(A) and that as a consequence, his conviction under Count III of the indictment is due to be reversed. The Government agrees that Stone's conviction under Count III of the indictment is due to be reversed. We therefore REVERSE the defendant's conviction under Count III of the indictment. ⁴ Stone also claims that he was a victim of ineffective assistance of counsel during his trial and seeks reversal of his entire conviction on this issue. We refuse to consider this claim as an initial matter on appeal. See United States v. Perez-Tosta, 36 F.3d 1552, 1563 (11th Cir.1994) (reiterating that "a claim of ineffective assistance of counsel cannot be considered on direct appeal if those claims were not first raised before the district court and if there has been no opportunity to develop a record of evidence relevant to the merits of the claim"), cert. denied, 515 U.S. 1145, 115 S.Ct. 2584, 132 L.Ed.2d 833 (1995).

Stone's co-defendants, Michael Lee Strickland and Kelly Lee Strickland, were each indicted for conspiracy to possess a controlled substance with intent to distribute in violation of 21 U.S.C. §§ 841(a) & 846 (Count I) and for using or carrying firearms in violation of 18 U.S.C. § 924(c) (Count II). Both were convicted on the first count and acquitted on the second. These defendants contend that they were improperly convicted under §§ 841(a) & 846 because, one, the trial judge permitted evidence of events occurring before the initiation of the conspiracy

charged in the indictment and, two, the trial judge impermissibly admitted into evidence checks allegedly signed by these defendants and ATF Forms 4473 which federally licensed firearms dealers are required to maintain. We find these claims to be without merit. The district court did not abuse its discretion in admitting the contested evidence. We therefore AFFIRM the convictions of these defendants. These defendants also argue that their sentencing is improper because the trial judge calculated the amount of cocaine base possessed by them without evidence supporting the calculation, the trial judge failed to attribute a specific amount to each defendant, and the trial judge included cocaine base used by them for personal consumption in calculating the base offense level under the sentencing guidelines. We reject these defendants' contentions that the trial judge improperly sentenced them. Sufficient evidence existed from which the trial judge could reasonably conclude that each of these defendants had responsibility for over 150 grams of crack cocaine. See United States v. Chirinos, 112 F.3d 1089, 1102-03 (11th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 701, 139 L.Ed.2d 644 (1998). As to the argument that the trial judge was to reduce the amount of cocaine base for which these defendants were responsible by the percentage that was obtained for personal use rather than obtained with the intent to distribute, this court has previously held that the amount of cocaine base "intended for personal use by [a defendant is] properly included by the district court in determining [his or her] base offense level[ ]." United States v. Antonietti, 86 F.3d 206, 210 (11th Cir.1996). Michael Lee Stricklin adds the contention that he was entitled to a reduction in sentencing because he was a minor or minimal participant in the conspiracy. This claim is lacking in merit. Evidence supports the conclusion that Michael Lee Stricklin was a significant participant in the conspiracy who provided the funds for the drug transactions and plotted the deals to exchange firearms for crack cocaine. See United States v. Gates, 967 F.2d 497, 501 (11th Cir.1992), cert. denied, 506 U.S. 1011, 113 S.Ct. 632, 121 L.Ed.2d 563 (1992). Our further review is restricted to the conviction and sentencing of Stone under Count I.

ANALYSIS

I

THE MEANING OF 21 U.S.C. § 844(a).

The offense that Stone was charged with conspiring to commit was possession with intent to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1) & 846. Section 841(a)(1) states, in relevant part:

Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally--

(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance ...

While § 841(a)(1) does not require proof that the controlled substance was cocaine base as an element of the crime, United States v. Williams, 876 F.2d 1521, 1525 (11th Cir.1989), Count I of the indictment against Stone stated that cocaine base was the controlled substance at issue. The penalties for possession with intent to distribute, the crime defined in § 841(a), are set out in a separate portion of the statute, § 841(b). ⁵ The instruction requested by Stone and his co-defendants gave the jury the option of finding that, rather than conspiring to possess cocaine base with the intent to distribute, the defendants had merely conspired to possess cocaine base in violation of 21 U.S.C. §§ 844(a) & 846. The district court hesitantly decided that conspiracy to possess a controlled substance (cocaine base) under §§ 844(a) & 846 was a lesser-included offense of conspiracy to possess a controlled substance with intent to distribute under §§ 841(a)(1) & 846 and that the jury could find the defendants guilty of the lesser-included offense while not guilty of the greater offense. ⁶ At the conclusion of trial, the judge charged the jury on the lesser-included offense as follows:

In some cases the law which a defendant is charged with breaking actually covers two separate crimes--one is more serious than the second, and the second is generally called a "lesser included offense."

So, in this case, with regard to the offense charged in Count I, if you should find a defendant "not guilty" of the crime charged in Count I as defined in these instructions, you should then proceed to decide whether that defendant is guilty or not guilty of the lesser included offense of conspiracy to simply possess cocaine base, commonly known as crack cocaine. The lesser included offense would consist of proof beyond a reasonable doubt that the crack cocaine was simply possessed for personal consumption, and was not possessed with intent...